Long v. Ryan

• Decision Date: 26 September 1878
• Citation: 71 Va. 718
• Court: Virginia Supreme Court
• Parties: LONG v. RYAN & al.

71 Va. 718

LONG v. RYAN & al.

Supreme Court of Appeals of Virginia.

September 26, 1878

1. There is a wide distinction between domicile and a residence. To constitute a domicile two things must concur: First residence; second, the intention to remain there for an unlimited time. Residence is to have a permanent abode for the time being, as contradistinguished from a mere temporary locality of existence.

2. What is the meaning of the word residence as used in any particular statute, must be decided upon its particular circumstances. The word is often used to express a different meaning according to the subject matter.

3. The word residence, in the statute in relation to attachments, is to be construed as meaning the act of abiding or dwelling in a place for some continuance of time.

4. While on the one hand the casual or temporary sojourn of a person in the state, whether on business or pleasure, does not make him a resident of the state within the meaning of the attachment law, especially if his personal domicile is elsewhere, so on the other hand, it is not essential that he should come into the state with the intention to remain here permanently, to constitute him a resident.

5. R domiciled in Washington, obtains a contract upon the W. &amp S. railroad to construct three sections of the road, and he may be employed to build culverts and bridges in such time as the engineer of the road may fix. He rents out his house in Washington, removes his family to a place on the route of the road, and keeps house. Before the work is finished or the time for completing it has arrived, an attachment is sued out against his effects--HELD: He was a resident of the state and the attachment quashed.

In June, 1869, R. H. Long brought an action of assumpsit in the circuit court of Frederick county, against P. M. Ryan, to recover the sum of $621.67, with interest on $470.35, a part thereof, from June 14th, 1869; and at the same time he sued out an attachment against the estate and debts of Ryan as an absent defendant. This attachment was served on the Winchester and Strasburg railroad company as garnishee. It is unnecessary to state the proceedings in the cause, as the only question considered by this court, was whether at the time of the suing out of the attachment Ryan was a non-resident of the state in the meaning of the statute. The court below dismissed the attachment, and Long obtained a writ of error and supersedeas. The facts are stated by Judge Staples in his opinion.

E. P. Dandridge and Barton & Boyd, for the appellant.

A. R. Pendleton and Andrew Hunter, for the appellee.

STAPLES J.

The books abound with discussions and decisions upon the subject of domicile, habitancy, and residence.

In Thorndike v. City of Boston, 1 Metc. R. 242, Shaw, C. J., said, " that the questions of residence, inhabitancy, or domicile, for although not in all respects precisely the same, they are nearly so, and depend much upon the same evidence, are attended with more difficulty than almost any other which are presented for adjudication."

There is, however, a wide distinction between domicile and residence, recognized by the most approved authorities everywhere. Domicile is defined to be a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. To constitute a domicile, two things must concur--first, residence ; secondly, the intention to remain there. Pilson, trustee, v. Bushong, 29 Gratt. 229; Mitchell v. United States, 21 Wall. U. S. R. 350. Domicile, therefore, means more than residence. A man may be a resident of a particular locality without having his domicile there. He can have but one domicile at one and the same time, at least for the same purpose, although he may have several residences. According to the most approved writers and lexicographers, residence is defined to be the place of abode, a dwelling, a habitation, the act of abiding or dwelling in a place for some continuance of time. To reside in a place is to abide, to sojourn, to dwell there permanently or for a length of time. It is to have a permanent abode for the time being, as contradistinguished from a mere temporary locality of existence. In the matter of Wrigby, 8 Wend. R. 134, 140; 1 Amer. Lead. Cases, 899, 953.

Notwithstanding these definitions it is extremely difficult to say what is meant by the word residence as used in particular statutes, or to lay down any particular rules on the subject. All the authorities agree that each case must be decided on its own particular circumstances, and that general definitions are calculated to perplex and mislead.

It is apparent that the word residence, like that of domicile, is often used to express different meanings, according to the subject matter. In statutes relating to taxation, settlements, right of suffrage, and qualification for office, it may have a very different construction from that which belongs to it in the statutes relating to attachments. In the latter actual residence is contemplated, as distinguished from legal residence. The word is to be construed in its popular sense, according to the definition already given, as the act of abiding or dwelling in a place for some continuance of time. Crawford v. Wilson, 4 Barb. R. 504, 523; Isham v. Gibbons, 1 Bradf. R. 69, 84; Drake on Attachment, §§ 61-2.

While on the one hand the casual or temporary sojourn of a person in this state, whether on business or pleasure, does not make him a resident of this state within the meaning of the attachment laws, especially if his personal domicile be elsewhere, so on the other hand it is not essential he should come into this state with the intention to remain here permanently to constitute him a resident. In the matter of Fitzgerald, 2 Caine's R. 318; Jackson v. Peery, 13 Mon. R. 231; Rayness v. Tayloe, 10 Louis. R. 726.

Whatever doubt or ambiguity there may have been in former laws on the subject, it is clear that since the revisal of 1849, a party cannot be proceeded against under the foreign attachment law unless he be actually a non-resident of the state at the time. Kelso v. Blackburn, 3 Leigh 299; Daniel on Attachments, p. 242. The question is not as to the place of his domicile, but his place of abode--his dwelling place. This branch of the attachment law is based upon the idea that a debtor is living--dwelling--beyond the limits of the state, but has...